Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720

Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720

Because Mr Benson's conditional costs agreement involved an uplift fee for a claim that included damages, it contravened Legal Profession Act 2004, s 324(1). Section 327(4) barred recovery of any amount for his legal services in the matter, including recovery on a quantum meruit or other restitutionary basis. The gross sum calculation therefore had to exclude his fees, leaving a starting figure of $225,334. Applying the earlier 75 per cent costs order and a broad, logical, fair and reasonable approach to factors including indemnity costs, duplication and the parties' relative success, the appropriate specified gross sum instead of assessed costs was $150,000.

Jurisdiction
Australia
Judgment Date
28 June 2011
Procedural Posture
Costs Application for a Specified Gross Sum Costs Order / Fourth Judgment After Principal Judgment, Determining the Amount of a Gross Sum Costs Order Instead of Assessed Costs
Outcome
Plaintiff awarded a gross sum of $150,000 instead of assessed costs; each party to bear its or his own costs of the gross sum costs application.
Legal Topics
['gross Sum Costs Orders' 'conditional Costs Agreements Involving Uplift Fees' "recoverability of Counsel's Fees" 'quantum Meruit for Legal Costs' 'indemnity Costs' 'costs of Application']
['civil Procedure' 'costs' 'legal Profession'] ['gross Sum Costs Orders' 'conditional Costs Agreements Involving Uplift Fees' "recoverability of Counsel's Fees" 'quantum Meruit for Legal Costs' 'indemnity Costs' 'costs of Application']

Case Brief

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Procedural Posture

Costs Application for a Specified Gross Sum Costs Order / Fourth Judgment After Principal Judgment, Determining the Amount of a Gross Sum Costs Order Instead of Assessed Costs

Legal Issues

  1. 1 ["Whether counsel's fees were recoverable where counsel entered into a conditional costs agreement involving an uplift fee in relation to a damages claim in contravention of Legal Profession Act 2004, s 324(1)." 'Whether counsel could recover the fair and reasonable value of legal services under Legal Profession Act 2004, s 319(1)(c) despite the void costs agreement.' "What specified gross sum should be ordered under Civil Procedure Act 2005, s 98(4)(c) instead of assessed costs, having regard to earlier costs orders, duplication, indemnity costs and the parties' relative success." 'What order should be made for the costs of the gross sum costs application.']

Ratio Decidendi

Because Mr Benson's conditional costs agreement involved an uplift fee for a claim that included damages, it contravened Legal Profession Act 2004, s 324(1). Section 327(4) barred recovery of any amount for his legal services in the matter, including recovery on a quantum meruit or other restitutionary basis. The gross sum calculation therefore had to exclude his fees, leaving a starting figure of $225,334. Applying the earlier 75 per cent costs order and a broad, logical, fair and reasonable approach to factors including indemnity costs, duplication and the parties' relative success, the appropriate specified gross sum instead of assessed costs was $150,000.

Court Disposition

Plaintiff awarded a gross sum of $150,000 instead of assessed costs; each party to bear its or his own costs of the gross sum costs application.

Orders

  • ['Order the plaintiff is entitled to a gross sum in the amount of $150,000 instead of the assessed costs of the proceedings.' 'Order that each party bear its or his own costs relating to the making of this gross sum costs order.']